|Greater Vancouver Water District, high water event of March 12 and 13 resulted in the destruction of the retaining wall in the river. It also resulted in the removal of the wooden deck|
IN THE SUPREME COURT OF BRITISH COLUMBIA
Veronica Ho, and
Greater Vancouver Water District, and
Before: The Honourable Mr. Justice Kelleher
Reasons for Judgment
 The plaintiffs’ home is on the south bank of the Capilano River in the District of North Vancouver. During the evening of March 12 and the morning of March 13, 2003, the river rose to an unusual extent. The plaintiffs claim that the high water caused both actual and potential damage, and have thus initiated these proceedings.
 The defendant Greater Vancouver Water District operates the Cleveland Dam in the Capilano River and a reservoir upstream of the dam, known as Capilano Lake. The dam and the reservoir are upstream of the plaintiffs’ home.
 The defendant Greater Vancouver Regional District (”GVRD”) owns the land immediately adjacent to the north of the plaintiffs. This includes the riverbed and the riverbank.
 Before March 12 and 13, there was a wooden deck located to the north of the plaintiffs’ property line, on the GVRD’s property, overlooking the river. The deck was built by the previous owner of the plaintiffs’ property.
 There was also a small retaining wall, on the GVRD’s property, which the previous owner had erected. The wall was located north of the wooden deck.
 The high water event of March 12 and 13 resulted in the destruction of the retaining wall in the river. It also resulted in the removal of the wooden deck and a substantial portion of the south bank of the river adjacent to the plaintiffs’ property.
 The damage does not threaten the house itself. The closest part of the house is approximately 20 feet from the north property line.
 This is a no-evidence motion by the defendants. It is brought pursuant to Rule 40(8) of the Supreme Court Rules, B.C. Reg. 221/90:
No evidence motion
At the close of the plaintiff's case, the defendant may apply to have the action dismissed on the ground that there is no evidence to support the plaintiff's case.
 The plaintiffs’ case is set out in paragraphs 30, 31 and 31.1 of their statement of claim.
30. Erosion of the south bank of the Capilano River and continuing subsidence within the GVRD Property has removed the natural support for the Ho Property.
31. Portions of the landscaping improvements on the Ho Property have been damaged as a result of the loss of support. The concrete landscaping strip located within the Ho Property has cracked and/or separated in several places and some of the other landscaping improvements have been lost.
31.1. The loss of natural support and damage to the Ho Property were caused by the negligence of the Defendants. Alternatively the loss of natural support and damage to the Ho Property were caused by nuisance for which the Defendants are liable. In the further alternative, the Defendants are liable for the loss of natural support and damage to the Ho Property pursuant to the rule in Rylands v. Fletcher.
 The plaintiffs allege negligence on the part of the Greater Vancouver Water District in permitting the high water level to occur, in not taking immediate steps to stop it and in failing to repair or restore the bank. The plaintiffs allege negligence on the part of the GVRD in not promptly restoring or repairing the south bank of the river adjacent to the plaintiffs’ property.
 The plaintiffs seek damages as well as a mandatory injunction requiring the defendants to permit the plaintiffs to enter the GVRD property to construct works to provide support to the whole property or alternatively, a mandatory injunction requiring the defendants to undertake all reasonable measures to restore support to the whole property.
 The plaintiff William Ker gave evidence about damage which he had observed on the property. There is a concrete strip on the south side of the north property line. It is four inches thick and 12 inches wide. The strip is cracked in three places.
 Mr. Ker’s evidence is that he did not look at the concrete strip at the time of the high water. He said that in early April 2003 he inspected the property to determine whether an insurance adjuster had missed anything. He noticed the cracks in the concrete for the first time. He noted in particular that at one of the three cracks the concrete strip had moved. This third crack resulted in the concrete being out of alignment by approximately three inches. That is, the concrete strip was almost three inches higher at the crack than the rest of the strip.
 Mr. Ker’s evidence is that he regularly ran the lawn mower along this strip on a regular basis. He would have noticed the cracks if they had occurred earlier.
 Counsel for the plaintiff invites the court to infer from Mr. Ker’s evidence that the damage to and displacement of the concrete strip were caused by a loss of support.
 However, the defendant argues there is simply no evidence that the cracks were caused by any loss of support or that the displacement at the third crack was caused by loss of support. In fact, the only evidence of loss of support is to the opposite effect. Timothy Smith, the engineering geologist who gave expert evidence on behalf of the plaintiffs, testified in cross-examination that there has been no loss of support to the plaintiffs’ property to date.
 This application is made based on the defendants’ assertion that there has been no evidence of any loss of support. That is to say, the plaintiffs have suffered no damage.
 On an application under Rule 40(8) it is not my role to evaluate the evidence. It is only to determine whether there is any evidence capable of supporting the plaintiffs’ claim: Roberge v. Huberman, 1999 BCCA 196, 62 B.C.L.R. (3d) 385.
 Counsel for the defendants argues that there is no basis for the inference that loss of support has caused the damage to the concrete strip. The only evidence about loss of support is that of Mr. Smith. He testified that there has not been any.
 The plaintiffs argue that even if there is determined to be no damage, the plaintiffs’ property is now at the risk of damage. It is not fair that they be denied relief.
 There is strong authority, however, that one may not maintain a claim for prospective damages arising from an increased risk that the property may lose support in the future.
 A claim for loss of support requires the existence of actual damage. In Dalton v. Henry Angus & Co. (1880-81), 6 A.C. 740 (H.L.), Lord Blackburn stated at page 808:
It is, I think, conclusively settled by the decision in this House in Blackhouse v. Bonomi that the owner of land has a right to support from the adjoining soil; not a right to have the adjoining soil remain in its natural state (which right, if it existed, would be infringed as soon as any excavation was made in it); but a right to have the benefit of support, which is infringed as soon as, and not till, damage is sustained in consequence of the withdrawal of that support.
 Similarly, in West Leigh Colliery Co. v. Tunnicliffe & Hampson Ltd.,  A.C. 27 (H.L.), Lord McNaughton stated:
It is undoubted law that a surface owner has no cause of action against the owner of a subjacent stratum who removes every atom of the mineral contained in that stratum, unless and until actual damage results from the removal. If damage is caused, then the surface owner “may recover for that damage,” as Lord Halsbury says in the Darley Main Colliery case “as and when it occurs.” The damage, not the withdrawal of support, is the cause of action.
 The court has jurisdiction under The Chancery Procedure Amendment Act, 1858 (Lord Cairns’ Act) (U.K.), 1858 21 & 22 Vict. C. 27 (in force in British Columbia by virtue of s. 2 of the Law and Equity Act, R.S.B.C. 1996, c. 253) to award prospective damages in lieu of an injunction: Rombough v. Crestbrook Timber Ltd. (1966), 57 D.L.R. (2d) 49, 55 W.W.R. 577 (B.C.C.A.). However, this jurisdiction only arises where the plaintiff has presented a case where a mandatory injunction could have been made on a quia timet basis in the case of future or threatened injury.
 There is no evidence here to justify a mandatory injunction. A mandatory injunction will only be granted where there is a strong probability on the facts that grave damage will occur in the future: Bullock Holdings v. Jerema (1998), 15 R.P.R. (3d) 185 (B.C.S.C.).
 There is no evidence of grave damage here. The plaintiffs’ experts indicate that there could be loss of support and in the future subsidence to part of the plaintiffs’ property. However, there is no suggestion that this subsidence would come anywhere near the plaintiffs’ home.
 A quia timet injunction also requires the plaintiff to establish on the balance of probabilities that there is an imminent threat of danger or damage to property. In Canadian Pacific Ltd. V. Highland Valley Cattle Co.,  B.C.J. No. 1860 (B.C.C.A.) (QL) the Court of Appeal explained the meaning of “imminent” at paragraph 45:
45 The principles expressed in Spry “The Principles of Equitable Remedies” (3d) 1984 at pp. 360-365, were relied upon by the trial judge. To justify granting a quia timet injunction, the plaintiff must establish on the balance of probabilities that there is an imminent threat of danger of damage to Canadian Pacific’s property. “Imminent” does not necessary imply immediacy, but it does suggest the virtual inevitability of an event.
 The requirements for a no evidence motion to succeed were explained in Roberge v. Huberman, supra. A plaintiff can be non-suited when the plaintiff fails to call evidence on an essential ingredient of the case. See paragraph 18.
 However, the role of the trial judge is a limited one in an application of this nature. The question is not whether the evidence meets some minimum standard. The task of a trial judge on such a motion is not to evaluate the quality of the evidence. Rather, the judge must decide whether there is evidence in support of the plaintiff’s claim. See 317159 B.C. Ltd. v. C.A. Boom Engineering,  B.C.J. No. 2699 (B.C.C.A.) (QL).
 Is there any evidence of damages? Mr. Ker’s evidence is that the concrete strip has cracked in three places and that one part of the strip is out of alignment. The plaintiffs argue that one can infer this was caused by the high water event.
 I conclude that in light of this evidence, the no evidence motion must be dismissed. It cannot be said there is no evidence of damage to the plaintiffs’ property. Mr. Smith’s evidence appears to be inconsistent with the inference the plaintiffs invite me to draw. But that is a matter of assessing the evidence. That is not my function in a no evidence motion.
 For these reasons, the application to dismiss the plaintiffs’ action is dismissed.
"The Honourable Mr. Justice Kelleher"
June 9, 2008 – Revised Judgment
Please be advised that the attached Reasons for Judgment of Mr. Justice S. Kelleher dated June 5, 2008 have been edited.
The Honourable Mr. Justice S. Kelleher